Caldwell & Kearns, P.C.
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Medical malpractice mediation: considering some of the issues, P.1

Mediation can be a useful tool in a variety of types of dispute, from construction projects to divorce to employment and labor law matters. In most mediation cases, the goal is to help the parties discuss their positions, understand each other’s underlying interests and to negotiate a sustainable agreement that can be enforced as a contract in a court of law. Depending on the area of dispute, there can be various challenges to achieving this goal.

One area where medical malpractice mediation can be potentially challenging is that such disputes can involve highly specialized medical knowledge. The issues of determining the proper standard of care and causation can be particularly challenging. In litigation, expert witnesses are typically produced to address such matters, but it may be necessary to consult with experts in medical malpractice mediation as well. While mediation is not litigation, such matters can impact the course of mediation with respect to the solutions proposed and the terms to which the parties are willing to agree.

There are other issues besides medical know-how that can make medical malpractice disputes difficult to navigate in mediation. Selecting the right mediator is important, because a mediator has to maintain neutrality and have the right background to be able to keep parties talking, communicating, and negotiating without getting locked into positions.

The type of mediator selected will also determine the type of mediation in which the parties will engage. Each mediator has a slightly different approach. This is true even among mediators who use the same general style of mediation.

We’ll continue looking at this issue in our next post.

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